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3 Ways to Destroy Witness' Credibility During a Medical Malpractice Trial

DESTROYING A WITNESS' CREDIBILITY

  1. Show contradictions between their pre-trial testimony and trial testimony
  2. Exposing their 'little white lie'
  3. Showing a witness didn't know the answer during deposition but suddenly at trial they know all the answers

YOUR CREDIBILITY IS EVERYTHING AT TRIAL

Does the jury believe you?
Are you believable?
Are you credible?

If you are, the jury will look at the facts.
If you're not, the jury will likely not even bother with the facts.
Can the jury believe what you're saying is true?

In a civil trial involving an accident matter, a medical malpractice matter or even a wrongful death matter, the jury must determine if you're telling the truth. They don't hook you up to a lie detector while testifying. Instead, they observe you. They listen. They watch. They see.

Does what you are saying make sense?
The goal of an opposing attorney who gets up to question you is to destroy your credibility.
That's the drama associated with cross-examination.

The jury knows it.
You know it.
The lawyer knows it.

Why is that such a big deal?
It's important because at the end of your trial, the judge instructs the jury on the law.
In New York, the judge will tell the jury that if they find a witness has testified falsely about one thing, they have the right to disregard all or some of that testimony.

There's a fancy Latin phrase for that called "Falsus in uno."

Let's get right into the three different ways (there are more) to destroy your credibility during your trial.

The first is to show there are contradictions in your testimony.
During your lawsuit, you will be required to answer questions from the opposing lawyer about what happened to you.
This takes place in your attorney's conference room.

There's no judge present.
There's no jury present.
But there is a court stenographer there to record all of the questions you're asked and all of the answers you give.

Those questions and answers are then transcribed and put into a booklet called a transcript.
This pretrial question and answer session is called a deposition.
Some lawyers also call it an examination before trial, or an EBT.

The answers you give in your attorney's conference room carry the same exact weight as if you are testifying at trial in front of a judge and a jury.
This is your SWORN testimony.
It can and will be used against you if you deviate from it when you are asked the same or similar questions years later at trial.

As a silly example, let's say you're asked to describe what the doctor-in-training looked like just before you had your surgery.
There's some issue about whether you correctly identified the doctor who assisted your surgeon during your surgery.
You say he was 5 feet 10 inches tall.

He was about 150 lbs.
A white male.
Wore eyeglasses and had long sideburns.

At trial, you're asked to describe the doctor whom you believe assisted your surgeon during your surgery.
You now say he was 6 foot 2 inches.
You claim he weighed about 180 lbs.

He was African-American.
With a beard.
No eyeglasses and no sideburns.

What just happened?
What happened is that you told a totally different story when asked the same exact questions a few years apart.
You might have a good explanation for why your answers are different.

You might have suddenly remembered exactly what he looked like.
Maybe you read a document that refreshed your memory.
Maybe someone whispered in your ear exactly what he looked like.

Who knows?
The point is that you SWORE that the answer to the original question was accurate.
Then, a year or two later, when the opposing lawyer asked you the same exact question, you gave a totally different answer.

YOUR LITTLE WHITE LIE

Maybe you weren't so accurate with your tax return.
Maybe your income was higher than you reported to the government.
Oops.

Maybe you committed a crime and were found guilty at trial.
You were asked during your pretrial deposition if you'd ever been convicted of a crime.
You decided to play smartass and say "No."

Oops.
The opposing attorney has a detailed record of your crime, your guilty verdict and the years you spent in prison.
Oops.

You thought your past history wouldn't come out in your medical malpractice case.
You thought one had nothing to do with the other.
You were right.

Except you lied.
Because of that, your credibility is shot.
Because of that, you may have destroyed your case.

If you had admitted it, you could have explained it away or at least tried to.
But hiding it and lying about it, that's bad.
Bad for your credibility.

"I DON'T KNOW," YOU SAY REPEATEDLY

During your pretrial examination before trial in your lawyer's office, the defense lawyer asks you a series of questions.
"What did you complain of when you went to the doctor on the first visit?"
"I don't remember," you say.

"On the second visit, what did you complain of?" he asks you.
"I don't know," you answer.
"On the third visit, what complaints did you make to your doctor?" he again asks.

"I don't recall," you respond.
This goes on all afternoon.
The defense lawyer gets the sense that you have no memory of the events.

One year later your case comes on for trial.
During cross examination, the defense lawyer asks you what complaints you made to your doctor on the very first visit to his office.
"Mrs. Jones, what complaints did you make to your doctor on the first visit?" he asks you.

"Oh, I told him that I had pain in my left breast," you say with confidence.
"What complaints did you make on the second visit?" he asks.
"Again, I told him that I had pain in my left breast and now there was fluid leaking from my nipple," you answer.

The lawyer's face is bright red.
He's boiling up, preparing for a withering and blistering cross examination.
He's locking you into your testimony before pouncing.

He's getting ready to show the jury the clear discrepancies about what you swore were the correct answers one year ago and your answers now at trial. He's going to do everything he possibly can to shred your credibility to pieces, regardless of how or why you somehow managed to 'remember' all the answers to those questions now, but couldn't remember a damn thing just a year ago.

To learn more about how to destroy a witness' credibility at trial, I invite you to watch the video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer